The Doha Flexibilities on Pharmaceutical Patent
The pharmaceutical patent is a subject matter of TRIPs, which seems to provide the necessary incentives for research and technological innovation. Patents are time-bound monopoly rights and it is often criticized as developed country oriented protection standards which are made obligatory for developing and least developed countries who are far behind in appropriating IPRs and who appropriate IPRs for their developmental needs. At first sense, TRIPs seems to pose a direct concern for the international human rights protection to the right to health through granting product and process patent under Article 27 of the Agreement. It also recognizes that the rights and obligations of the patent holders need to be balanced, thus admitting the limitations and flexibilities as fundamental to the regime. It has expressly mentioned that member states can take necessary measures to protect public health and to promote public interest to enhance socio, economic and technological development. Article 27.2 allows member states to restrict patentability of inventions if they generate a treat to human life or human health, and Article 30 has given three steps test to justify the exception. TRIPS permits other uses of patents without the authorization of the patent holder, which is known as compulsory licenses. It provides transitional period both for developing and least developed countries under article 65 and 66, to strengthen their institutional mechanism for the effective administration of patents and to protect public health. In a nutshell, it can be said that TRIPS provides the member states adequate difference to undermine patent protection for combating right to health.